In its June 15th ruling, The Supreme Court found no evidence of discrimination in the 2005 dismissal case of Ian Stewart from Elk Valley Coal, demonstrating that the termination of an employee with a disability is not always a breach of human rights.
The case involved former Elk Valley Coal employee, Ian Stewart, who worked as a heavy equipment operator at Cardinal River mine in Alberta. In October of 2005, when his loader was involved in an accident at the mine site and Stewart subsequently tested positive for drugs, he was dismissed from the company; however, upon his termination, Stewart claimed he had been discriminated against because of his illegal addiction to cocaine.
Prior to the 2005 incident, Elk Valley Coal had implemented an Alcohol, Illegal Drugs and Medical policy, and provided training sessions for employees (including Stewart) who were asked to attend and sign a form acknowledging their understanding of the policy’s requirements. As part of the agreement, employees were expected to disclose any drug dependence or addiction to their employer before any incidents occurred. Because Stewart had used cocaine on his days off from the company but did not disclose this information before the October 2005 incident, the Alberta Human Rights Tribunal found that he had been terminated from his position for breach of policy, and not as a result of discrimination against his addiction. This ruling was later confirmed by the Alberta Court of Queen’s Bench, the Alberta Court of Appeal, as well as the Supreme Court of Canada.
Six justices dismissed the appeal, stating Stewart “had the capacity to comply with the policy and would have been fired whether he was an addict or a casual user. It was therefore not unreasonable for the tribunal to conclude that there was no prima facie discrimination.”
For employers, Stewart vs. Elk Valley Coal Corp. showcases one method of maintaining an alcohol and illegal drug free safety-sensitive workplace without having to rely on the implementation of court limited, random drug testing. John Batzel, partner at Bennett Jones in Calgary, says he’s “of the view that the [Alcohol, Illegal Drugs and Medical] policy should include a self-disclosure component, particularly when you’re dealing with a safety-sensitive workplace,” and that this recent Supreme Court decision, and following policies, will help to relieve employers’ accountability for their employees’ undisclosed addictions. He went on to say,
“Even if your ability to random test employees in a safety-sensitive workplace is limited, you as an employer may still really be able to get to the same place by requiring employees to disclose their own substance use that could lead to impairment, with the possibility of dismissal if they don’t voluntarily disclose.”
With regards to workplace drug testing, Batzel advises employers to proceed with caution, and to recognize that drug testing is permitted in only “very rare and limited circumstances,” and as Shivani Chopra, associate at Hicks Morley Toronto says, these tests “should be part of a policy that incorporates principles of health and safety, prevention, accommodation and rehabilitation.”
As a final caveat, Calgary University law professor Jennifer Koshan states that employers “still need to be careful about employees with addictions, because even the majority of the Supreme Court said there will be some cases where employees with addictions who can’t control drug use don’t have the capacity to control that and report. So, in those cases, it may be that a finding could be made [that] the employer hadn’t fulfilled its duty to accommodate.”
Dobson, Sarah “Supreme court confirms employers can terminate workers with disabilities.” Canadian HRReporter 7 Aug. 2017: 1&8 Print.